CACV 204/2019
[2019] HKCA 927
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 204 OF 2019
(ON APPEAL FROM HCAL NO 833 of 2018)
________________________
| | Pal Sushil Kumar | Applicant |
| and | |
| Torture Claims Appeal Board/
Non‑refoulement Claims Petition Office | 1st Putative
Respondent |
| The Director of Immigration | 2nd Putative
Respondent |
________________________
Before: Hon Kwan VP and Toh J in Court
Date of Hearing: 13 August 2019
Date of Judgment: 19 August 2019
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JUDGMENT
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Hon Toh J (giving the Judgment of the Court):
1. This is the appeal against the decision of Deputy High Court Judge Josiah Lam on 17 April 2019 refusing leave to the applicant to apply for judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim.
2. The applicant is a national of Nepal who tried to enter Hong Kong from China on 26 December 2014 but was refused permission to land. He then raised a non‑refoulement claim. He claimed that he would be harmed or killed by members of the Nepali Congress Party (“NCP”) as he supported the Tarai Lok Tantra Party and refused to join NCP.
The Director’s decisions
3. By a Notice of Decision dated 23 March 2015, the Director rejected the applicant’s non‑refoulement claim on the grounds including torture risk, BOR 3 risk and persecution risk.
4. The Director assessed that the low intensity and low frequency of past ill‑treatment from the NCP members in the past are indicative of a small future risk of harm upon his return to Nepal. Furthermore, the availability of state protection and internal relocation alternatives further lowers or negates the level of risk. Thus, the non‑refoulement application was rejected by the Director.
5. By a Notice of Further Decision dated 3 January 2017, the Director rejected the applicant’s claim in the absence of response from him to the invitation to submit additional facts which may be relevant to his non‑refoulement claim on all applicable grounds including right to life under article 2 of the Hong Kong Bill of Rights.
The Board’s decision
6. The applicant attended the hearing of the appeal against the Director’s decisions on 31 May 2017. The Board considered that the applicant failed to establish in evidence that his suffering attained a level of severity physically or mentally and the members of NCP were not acting in official capacity. The Board also found that the state protection is available in Nepal. Therefore, the Board decided that the applicant’s claims for non‑refoulement protection were not made out on any of the applicable grounds and rejected the appeal on 10 May 2018.
The intended judicial review
7. The applicant filed a Form 86 and an affirmation on 14 May 2018 to seek leave to apply for judicial review against the decisions of the Director and of the Board.
The judge’s decision
8. According to Re Moshsin Ali[2018] HKCA 549, the decision of the immigration officer is not a decision that is susceptible to judicial review once an appeal to the Board is pursued by a claimant. Thus, the judge dealt with his application in relation to the Board’s decision only.
9. The judge considered that the applicant failed to show how his case would be undermined or prejudiced by the lack of legal representation only in the appeal stage and he had much exaggerated his language problem as he could find someone to assist him dealing with English documents at all material times and he was assisted by qualified interpreters while being represented by the Duty Lawyer Service and also in the screening process before the Director and the adjudicator. The judge further found that the adjudicator had proper basis for his decision and had given clear explanation. The applicant also failed to show how the Director’s absence would prejudice his appeal. As the applicant has no realistic prospect of success in the sought judicial review, the leave application was refused on 17 April 2019.
Grounds of appeal
10. The applicant filed a Notice of Appeal against the decision of the judge on 29 April 2019. He stated his grounds of appeal in his notice of appeal which are summarized as follows:
(1) The judge failed to consider the significance and level of unfairness the lack of language assistance had on him as a litigant. The applicant does not have language assistance at all material times and he could not understand the judgment.
(2) The judge has made an oversight by saying that the applicant has failed to show how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process. The applicant was not legally represented for the BOR 2 claim and he did not understand what BOR 2 means.
(3) The judge erred in his consideration of the lack of interpretation service as the judge has not made a finding that there was any interpretation service provided to the applicant after the Director’s decision.
(Similar complaints were also raised in the affirmation in support of the original leave application before the judge.)
Analysis
11. The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration[2018] HKCA 524 at § 14.
12. The role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision‑makers are the Director and the Board. Though in non‑refoulement cases the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board. Assessment of evidence and Country of Origin Information (“COI”) materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.
13. An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge. In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.
14. In an appeal against refusal of leave to apply for judicial review in non‑refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge, the appeal should be dismissed. It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.
15. The grounds relating to the lack of language assistance have no merit. The high standard of fairness required by law would not entail interpretation service being made available to an applicant all the time as he may desire: Re Gurung Sagar[2019] HKCA 658.
16. In the present case, interpreter services were provided at hearings at every stage and at the time when the applicant was assisted by the Duty Lawyer Service. Besides, all court documents including the affirmation filed in support of the leave application, the notice of appeal, and the written submission in support of this appeal, were written in English. This indicates that either the applicant is himself conversant with the English language or he has access to language assistance of his own if needed. Therefore, the applicant has failed to show that the alleged lack of language assistance at other times would render the process unfair.
17. As for the ground relating to the lack of legal representation, the Court of Appeal has repeatedly stated that an applicant of non‑refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings: Re Paswan Shibu Lal, CACV 284/2017, para 21. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. He argued that he has been prejudiced as he was not represented for his BOR 2 claim. In fact, he did approach the Duty Lawyer Service after receiving the Director’s invitation to submit additional facts relevant to BOR 2 risk and the Duty Lawyer Service wrote to the immigration officer on behalf of the applicant to request for an extension of time to submit additional facts. Eventually, no additional materials were submitted by the applicant to the immigration officer.
18. Thus, the applicant has failed to show that he was prejudiced as alleged in his claim under BOR 2 risk and there is nothing amiss arising from the lack of legal representation in the process before the Board.
19. The applicant has failed to demonstrate that the judge had made errors of law or has failed to take into account relevant matters already placed before the court or was otherwise plainly wrong. None of the grounds of appeal raised by the applicant are viable for reversing the decision of the judge.
Disposition
20. The appeal is dismissed as there is no merit in the appeal and no prospect of success in the intended application for judicial review.
| (Susan Kwan) | (Esther Toh) |
| Vice President | Judge of the |
| | Court of First Instance |
The applicant appeared in person.